Quashed

Ferdinand Aloysium Frnscis Miranda v. the Mun.Corpn of Gr. Bombay and Anr.

Bombay HC3 Mar 2005WP/2464/1994

Case brief

AI extract

What is this about?

The High Court set aside a notice issued by the Municipal Corporation under sections 52 and 53 of the MRTP Act prohibiting the erection of a barbed wire fence. The Court held that placing the fence to protect plants did not constitute development or a change of use as defined in the Act.

What did the court decide?

The impugned notice under section 53(1) of the MRTP Act was declared illegal and set aside. Rule made absolute.

Ferdinand Aloysium Frnscis Miranda Vs the Mun.Corpn of Gr… — Land Acquisition | Bombay HC (2005)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 ORDINARY ORIGINAL CIVIL JURISDICTION

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 Writ Petition No.2464 of l994

¶4

 Ferdinand Aloysius Francis Miranda..Petitioner
 vs

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 The Mun Corpn of Gr Mumbai and anr..Respondents

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 Ms K N Velankar for petitioner
 Mr. V.Mahadik fo respondent corporation

¶7

CORAM: A.P.SHAH & S.J.VAZIFDAR JJ.

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 Dated 3.3.2005

¶9

 P.C:

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 Heard advocates.

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 l. The petitioner is the owner of a bungalow
 consisting of ground and one upper floor situated
 at St Alexius Road, Bandra, Mumbai. The petitioner
 is residing on the first floor and the ground floor
 is occupied by a tenant. It appears that the
 petitioner has planted trees, plants and shrubs and
 has painstakingly maintained them. A barbed wire
 fencing erected 20 years ago has been protecting
 these plants. The petitioner claims that the
 tenant’s nephew poured acid down an avocado plant
 which died and therefore to protect the plant he
 put up 8 prefabricated cement posts on the rear
 side and a new barbed wire fence was put up in

¶12

 October l993.

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 2. On l5.l0.l993 a notice under section 354A of
 the Mumbai Municipal Corporation Act was issued to
 stop work of erecting the fencing. It appears that
 petitioner met officials of the Corporation
 explaining his difficulties and requested them to
 visit the site. It is alleged that the Junior
 Engineer of the Corporation refused to visit the
 site and threatened that he would remove the posts.

¶14

 3. The petitioner filed Suit No.6655 of l993 in
 the City Civil Court at Mumbai on 25.l0.l993 inter
 alia praying for a declaration that the notice was
 illegal and for injunction restraining the
 respondents from enforcing the said notice.
 Ad-interim relief was granted in Notice of Motion
 No.5096 of l993 in the above suit filed by the
 petitioner. At the hearing of the notice of motion
 the learned Judge held that notice under section
 354A did not give a right to file a suit since
 there would be a further notice required under
 section 35l. Hence he held that nothing survives
 in the suit. First Appeal No.292 of l994 filed by
 the petitioner challenging the order of the City
 Civil Court has been admitted and interim relief
 was granted on 7.4.l994. That First Appeal is

¶15

 pending in this court.

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 4. It appears that thereafter a notice under
 section 53 of the Maharashtra Regionala and Town
 Planning Act, l966 dated 25.l0.l994 came to be
 issued by the respondent no 2 on the ground that
 the work has been undertaken without permission
 under the said Act. The petitioner by his reply
 dated 7.ll.l994 pointed out that the notice was
 malafide and illegal and called upon the respondent
 corporation to forthwith withdraw and cancel the
 notice and to confirm in writing to the advocate
 within one week that notice has been withdrawn.
 The respondents failed to do so and hence this
 petition.

¶17

 5. The learned counsel appearing for the

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 petitioner drew our attention to the relevant
 provisions of the MRTP Act. Sections 52(l) and
 53(l) of the MRTP Act which are material for our
 purpose read thus:

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 "52(l) Any person who, whether at his own
 instance or at the instance of any other
 person commences, undertakes or carries out
 development or institutes, or changes the
 use of any land,-

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 (a) without permission required under this
 Act, or

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 (b) which is not in accordance with any
 permission granted or in contravention of
 any condition subject to which such
 permission has been granted;

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 (c) after the permission for development has
 been duly revoked; or

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 (d) in contravention of any permission which
 has been duly modified, shall, on conviction
 be punished with imprisonment for a term
 which may extend to three years,or with fine
 which may extend to five thousand rupees or
 with both, and in the case of a continuing
 offence with a further fine which may extend
 to one hundred rupees for every day during
 which the offences continues after
 conviction for the first commission of the
 offence".

¶24

 53(l) Where any development of land has been
 carried out as indicated in sub-section (l)
 of section 52, the Planning Authority may,

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 subject to the provisions of this section,
 serve on the owner a notice requiring him,
 within such period, being not less than one
 month,as may be specified therein after the
 service of the notice, to take such steps as
 may be specified in the notice.

¶26

 a) in cases specified in clauses(a) or (c)
 of section 52, to restore the land to its
 condition existing before the said
 development took place.

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 b) in cases specified in clauses (c) or (d)
 of sub-section (l) of section 52, to secure
 compliance with the conditions or with the
 permission as modified.

¶28

 Provided that, where the notice required the
 discontinuance of any use of land, the
 Planning Authority shall serve a notice on
 the occupier also".

¶29

 6. The learned counsel appearing for the
 petitioner submitted that erection of a barbed wire
 fencing is not violative of the provisions of
 either section 53(l) or section 53(l) of the MRTP
 Act. He submitted that the fencing put up by the

¶30

 petitioner within his compound does not amount to
 development or change of use of the land within the
 meaning of section 53(l) or section 52(l) of the
 Act. He submitted that the fence put up by the
 petitioner within his compound was meant to protect
 his trees and plants does not amount to a building
 or structure within the meaning of the Act and the
 notice has been issued only to circumvent the stay
 of notice issued by the Corporation granted by this
 court in First Appeal No. 294 of l994. We are
 inclined to accept the submission of the learned
 counsel for the petitioner that a barbed wire
 fencing has been put up to protect the plants and
 no building or development work as defined under
 the Act has been carried out nor there has been any
 change in use of the said land. The Corporation
 has not cared to reply to the petition though the
 petition is pending for more than 7 years. The
 learned counsel for the Corporation is unable to
 state on what basis the impugned notice has been
 issued that development has been carried on the
 land. The impugned notice is therefore illegal and
 is liable to be set aside.

¶31

 Rule is accordingly made absolute in terms
 of prayer clause (a).

Ferdinand Aloysium Frnscis Miranda v. the Mun.Corpn of Gr. Bombay and Anr.

Case brief

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What did the court decide?

Ferdinand Aloysium Frnscis Miranda v. the Mun.Corpn of Gr. Bombay and Anr.

Case brief

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What did the court decide?

What the court decided

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